(concurring).
¶ 30. The Majority's decision concludes that the $750,000 cap on noneconomic damages found in Wis. Stat. § 893.55 is unconstitutional on its face. I disagree, for reasons set forth below. However, because I agree with the trial court's conclusion that § 893.55 is unconstitutional as applied in this case—an issue the Majority decision did not reach—I concur in the result allowing the jury's award of noneconomic damages to stand.
*590¶ 31. The Majority's decision and analysis mirrors that of our supreme court in Ferdon, including the recognition of two classes of victims—those who are fully compensated from the Fund, and those who are only partially compensated. Id., 284 Wis. 2d 573, ¶ 82. In Ferdon, the court concluded that a rational relationship did not exist between the classes of victims created by the cap and "the legislative objective of compensating victims of medical malpractice fairly." Id., ¶ 105. Therefore, the court struck down the damages cap statute, which was then set at $350,000, on grounds that it violated equal protection guarantees and thus was unconstitutional on its face. Id., ¶ 10.
¶ 32. In reaction to the Ferdon decision, the legislature went to work revising the damages cap statute in an effort to get it to pass constitutional muster. The resulting revised statute sets forth legislative objectives that track the reasoning of our supreme court in Ferdon. While the Majority also followed Ferdon as a guide, it found that the legislature came up short in terms of constitutionality. I disagree.
¶ 33. In reviewing the constitutionality of a statute on an equal protection challenge, we begin with "the principle repeatedly stated" by our supreme court, as well as the United States Supreme Court, that "all legislative acts are presumed constitutional." Sambs v. City of Brookfield, 97 Wis. 2d 356, 370, 293 N.W.2d 504 (1980). This presumption places a heavy burden on the party that is challenging constitutionality, because if "any doubt exists it must be resolved in favor of the constitutionality of a statute." Id. The court in Sambs further described the presumption:
A legislative classification is presumed to be valid. The burden of proof is upon the challenging party to *591establish the invalidity of a statutory classification. Any reasonable basis for the classification will validate the statute. Equal protection of the law is denied only where the legislature has made irrational or arbitrary classification.... The basic test is not whether some inequality results from the classification, but whether there exists any reasonable basis to justify the classification.
Id. at 371(citation and quotation marks omitted; ellipses in Sambs).
¶ 34. The test referenced by the Sambs court, and correctly applied by the Majority in this case, is the rational basis test. In applying the rational basis test, the court reviews whether the challenged classification "rationally relate[s] to a legitimate state interest." Id.
¶ 35. In his dissent in Ferdon, Justice Prosser focused on this concept, stating that the classifications described by the Majority would exist with any amount set forth as a statutory cap on damages. Id., 284 Wis. 2d 573, ¶ 225 (Prosser, J. dissenting). Simply put, "[a]ll caps have that effect." Id. This assessment was echoed by Justice Roggensack in her dissent in Fer-don: "... the legislature made a rational policy choice that some victims of medical malpractice would not receive all of the noneconomic damages they were awarded, for the public good. That is a choice that any cap will have to make, no matter what the amount." Id., ¶ 331 (Roggensack, J. dissenting).
¶ 36. The fact of the matter is there is a certain amount of arbitrariness in choosing any amount as a cap. However, we must review this or any constitutionally challenged statute in accordance with established standards:
*592. . .it is the court's obligation to locate or to construct, if possible, a rationale that might have influenced the legislature and that reasonably upholds the legislative determination. The rationale which the court locates or constructs is not likely to be indisputable. But it is not our task to determine the wisdom of the rationale or the legislation. The legislature assays the data available and decides the course to follow.
Sambs, 97 Wis. 2d at 371.
¶ 37. In other words, " '[¡Judicial response to a challenged legislative classification requires only that the reviewing court locate some reasonable basis for the classification made. The public policy involved is for the legislature, not the courts, to determine.' " Id. (citation omitted).
¶ 38. To be clear, I do not disagree that courts should—indeed, are required—to review legislative acts with a "meaningful level of scrutiny." Ferdon, 284 Wis. 2d 573, ¶ 77. However, I believe that the legislature has established a reasonable basis for the damages cap statute, and therefore I find it to be facially constitutional.
¶ 39. On the other hand, I would affirm the trial court's finding that the cap is unconstitutional as it applies to the Mayos. In an as-applied challenge, the party challenging the constitutionality of the statute "must show that his or her constitutional rights were actually violated." State v. Wood, 2010 WI 17, ¶ 13, 323 Wis. 2d 321, 780 N.W.2d 63. If the challenging party is successful in showing that such a violation occurred, the "operation of the law is void as to the party asserting the claim." Id.
*593¶ 40. This analysis differs from that of a facial challenge, however, in the presumption of constitutionality that must be extended:
In an as-applied challenge, our task is to determine whether the statute has been enforced in an unconstitutional manner. While we presume a statute is constitutional, we do not presume that the State applies statutes in a constitutional manner. Because the legislature plays no part in enforcing our statutes, "deference to legislative acts" is not achieved by presuming that the statute has been constitutionally applied. As such, neither the challenger nor the enforcer of the statute face a presumption in an as-applied challenge. The challenger, however, has the burden of proof, a concept distinct from the presumption of constitutionality.
Society Ins. v. LIRC, 2010 WI 68, ¶ 27, 326 Wis. 2d 444, 786 N.W.2d 385 (quoted source, internal citation and footnote omitted).
¶ 41. Put another way:
. . .the analysis that is employed for an as-applied challenge contains no presumption in regard to whether the statute was applied in a constitutionally sufficient manner. Rather, the analysis of an as-applied challenge is determined by the constitutional right that is alleged to have been affected by the application of the statute. Stated otherwise, the analysis differs from case to case, depending on the constitutional right at issue.
Tammy W-G. v. Jacob T., 2011 WI 30, ¶ 49, 333 Wis. 2d 273, 797 N.W.2d 854.
¶ 42. In analyzing an equal protection challenge, "'[t] he fundamental determination to be made when considering a challenge based upon equal protection is *594whether there is an arbitrary discrimination in the statute or its application, and thus whether there is a rational basis which justifies a difference in rights afforded.' " State ex rel. Watts v. Combined Cmty. Servs. Bd. of Milwaukee Cty., 122 Wis. 2d 65, 77, 362 N.W.2d 104 (1985) (citation omitted). " 'Whether there exists a rational basis involves weighing the public interest served by retroactively applying the statute against the private interest that retroactive application of the statute would affect.' " Society Ins., 326 Wis. 2d 444, ¶ 30 (citation omitted).
¶ 43. I agree with the trial court that the Mayos have met their burden in challenging the caps statute on equal protection grounds. As the trial court pointed out in its written decision, the severity of Ascaris's injuries is a significant factor in this analysis. She has been left limbless and largely immobile as the result of the failure of her health care providers to provide antibiotics to combat her infection. The jury found the $16.5 million award for noneconomic damages to be reasonable, and no one has argued that it is excessive. Yet, to apply the statutory cap to this award would have the effect of reducing the award by over ninety-five percent. This highlights the disparity in applying the cap to a severely injured patient such as Ascaris, as compared to applying the cap in cases where a patient is less severely injured and receives a lower award, but is able to collect the entire amount of the award because it falls under the cap's limits.
f 44. Furthermore, the trial court found that denying the Mayos the full amount that the jury awarded them, especially a reduction of that extent, does nothing to further the cap's purposes. The primary goal of the legislature in enacting the cap was to regulate against excessively high or unpredictable *595damages awards. This is neither. As noted above, there are no arguments that it is excessive or out of proportion with Ascaris's injuries. Moreover, the award will not threaten the viability of the Fund, as it has a current balance of over $1.08 billion, with relatively few claims paid out, and the number of claims being filed each year has been decreasing.
¶ 45. As the trial court noted, it would be unreasonable for the Mayos, whose lives have been so drastically altered due to these events, to have to "bear the brunt of the legislature's 'tort reform.' " The trial court found no rational basis for the Mayos to be denied their full jury award. I agree.
¶ 46. In sum, I would decide this case on the issue that was not addressed by the Majority—that Wis. Stat. § 893.55 is unconstitutional as applied to the Mayos. Accordingly, I would affirm the decision of the trial court, and because the Majority did not disturb the trial court's findings on that issue, I concur with the outcome of the decision.